Amicus Curiae Brief — United States, Petitioner v. Zackey Rahimi

Supreme Court briefAug 21, 2023

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No. 22-915

IN THE

Supreme Court of the United States

————

UNITED STATES OF AMERICA,

Petitioner,

ZACKEY RAHIMI,

Respondent.

————

On Writ of Certiorari to the

United States Court of Appeals

for the Fifth Circuit

————

BRIEF OF EDUCATORS, PRACTITIONERS,

AND ORGANIZATIONS WITH EXPERTISE

IN DOMESTIC VIOLENCE PROTECTIVE

ORDERS AS AMICI CURIAE

IN SUPPORT OF PETITIONER

————

JENNIFER B. LOEB

ANDREW HENDERSON

FRESHFIELDS BRUCKHAUS

DERINGER US LLP

700 13th Street NW

10th Floor

Washington, DC 20005

AARON R. MARCU

Counsel of Record

AEDAN COLLINS

BRANDT HENSLEE

DANIEL HODGKINSON

TAYLOR JACHMAN

MATTHEW RUBLIN

FRESHFIELDS BRUCKHAUS

DERINGER US LLP

601 Lexington Avenue

31st Floor

New York, NY 10022

(212) 277-4000

aaron.marcu@freshfields.com

Counsel for Amici Curiae

August 21, 2023

WILSON-EPES PRINTING CO., INC. – (202) 789-0096 – WASHINGTON, D.C. 20002

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ................................

iii

INTEREST OF AMICI CURIAE ........................

SUMMARY OF ARGUMENT .............................

ARGUMENT ........................................................

I. 18 U.S.C. § 922(g)(8) Disarms Individuals Only in a Subset of Civil Protective

Order Cases Involving Domestic Violence,

Where Rigorous Safeguards Are Met and

Practical Barriers Are Overcome .............

A. Section 922(g)(8) only applies where

procedural safeguards have been

satisfied and the underlying protective order meets substantive requirements specific to domestic violence

cases .....................................................

B. Texas’s law exemplifies the requirements of § 922(g)(8) .............................

C. Petitioners seeking DVPOs must meet

strict procedural requirements ...........

D. Petitioners seeking DVPOs must

overcome myriad practical burdens ....

1. Practical burdens of the notice/

personal service requirement ........

2. Practical burdens of the hearing

requirement ....................................

E. Section 922(g)(8) does not apply to

many civil disputes ..............................

(i)

TABLE OF CONTENTS—Continued

Page

II. In Light of These Substantive Safeguards

and Practical Burdens, DVPOs Appropriately Disarm Dangerous Individuals of

Firearms ....................................................

A. This Court should presume that state

judges are capable of appropriately

doing their jobs ....................................

B. Our justice system requires the

presumption that judges can discern

between legitimate and frivolous

claims ...................................................

C. If anything, judges are biased against

DVPO petitions by abused women .....

III. Section 922(g)(8) Is Vitally Important to

Protect People in Serious Danger ............

CONCLUSION ....................................................

APPENDIX

iii

TABLE OF AUTHORITIES

CASES

Page(s)

Parke v. Raley,

506 U.S. 20 (1992) ..................................... 20-21

United States v. Rahimi,

61 F.4th 443 (5th Cir. 2023) ... 16, 17, 21, 25, 26

CONSTITUTION

U.S. Const. amend. II ...................................

STATUTES

18 U.S.C. § 921(a)(32)...................................

4, 5

18 U.S.C. § 922(g)(8)................ 1-6, 9, 15-17, 26-29

18 U.S.C. § 922(g)(8)(A) ................................

3, 4

18 U.S.C. § 922(g)(8)(B) ................................

18 U.S.C. § 922(g)(8)(C) ................................

34 U.S.C. § 10450 .........................................

34 U.S.C. § 10461 .........................................

Keeping Children Safe From Family

Violence Act (Kayden’s Law), Tit. XV,

Pub. L. 117-103, 136 Stat. 951 (2022) ......

§ 1502(9), 136 Stat. at 952 ........................

Ark. Code Ann. § 9-15-205(b) .......................

Cal. Corp. Code § 15908.06 ..........................

Cal. Fam. Code § 243....................................

Cal. Fam. Code § 6345..................................

Cal. Fam. Code § 6345(a) .............................

Cal. Welf. & Inst. Code § 366.26 ..................

TABLE OF AUTHORITIES—Continued

Page(s)

Conn. Gen. Stat. Ann. § 46b-15(b) ...............

Del. Code Ann. tit. 9, § 280 ..........................

Md. Code Ann. Fam. Law § 4-505................

Minn. Stat. Ann. § 518B.01..........................

N.Y. Fam. Ct. Act § 821 ...............................

Tex. Fam. Code § 71.003 ..............................

Tex. Fam. Code § 71.004 ..............................

Tex. Fam. Code § 82.002(a) .......................... 6, 10

Tex. Fam. Code § 82.042 ..............................

Tex. Fam. Code § 82.043(c) ..........................

Tex. Fam. Code § 84.001(a) ..........................

Tex. Fam. Code § 84.003(a) ..........................

Tex. Fam. Code § 84.004(a) ..........................

Tex. Fam. Code § 85.001(a) ..........................

Tex. Fam. Code § 85.005 ..............................

2023 Tex. Sess. Law Serv. Ch. 275 (S.B.

855) ............................................................

2023 Tex. Sess. Law Serv. Ch. 688 (H.B.

1432) ..........................................................

RULES

Fed. R. Civ. P. 4(e)(2)(B) ..............................

Tex. R. Civ. P. 13 ..........................................

Tex. R. Civ. P. 106(a) ....................................

TABLE OF AUTHORITIES—Continued

OTHER AUTHORITIES

Page(s)

A. Rachel Camp, From Experiencing Abuse

to Seeking Protection: Examining the

Shame of Intimate Partner Violence, 13

U.C. Irvine L. Rev. 103 (2022) ..................

Alexia Cooper & Erica L. Smith, U.S.

Department of Justice, Homicide Trends

in the United States, 1980-2008, at 10

(2011) ......................................................... 26-27

American Bar Association, Jurisdictional

Adoption of Revised Model Code of

Judicial Conduct, https://tinyurl.com/yht

jysdt (last visited Aug. 16, 2023) ..............

American Psychological Association, Violence

& Socioeconomic Status (2016), https://

tinyurl.com/2zh5nhts ................................

Andrew C. Budzinski, Reforming Service of

Process: An Access-To-Justice Framework,

90 U. Colo. L. Rev. 167 (2019) .................. 7, 11

April M. Zeoli & Daniel W. Webster, Effects

of Domestic Violence Policies, Alcohol

Taxes and Police Staffing Levels on

Intimate Partner Homicide in Large US

Cities, 16(2) Inj. Prevention 90 (2010) .....

April M. Zeoli et al., Analysis of the

Strength of Legal Firearms Restrictions

for Perpetrators of Domestic Violence and

Their Associations with Intimate Partner

Homicide, 187(11) Am. J. Epidemiology

2365 (2017) ................................................

TABLE OF AUTHORITIES—Continued

Page(s)

Arlene N. Weisz, Legal Advocacy for

Domestic Violence Survivors: The Power

of an Informa-tive Relationship, 80 Fams.

Soc’y 138 (1999).........................................

CBS News, Letterman Fights Restraining

Order (Dec. 21, 2005), https://tinyurl.com/

y8t9u 3f6 ...................................................

Dana Harrington Conner, Civil Protection

Order Duration: Proof, Procedural Issues,

and Policy Considerations, 24 Temp. Pol.

& Civ. Rts. L. Rev. 343 (2015) ..................

D.C. Access to Justice Comm’n, Justice for

All? An Examination of the Civil Legal

Needs of the District of Columbia’s LowIncome Community (2008) ........................

Deborah Epstein & Lisa Goodman,

Discounting Women: Doubting Domestic

Violence Survivors’ Credibility and

Dismissing Their Experiences, 167 U. Pa.

L. Rev. 399 (2019) ..................................... 23, 24

Deborah Epstein et al., Transforming

Aggressive Prosecution Policies: Prioritizing Victims’ Long-Term Safety in the

Prosecution of Domestic Violence Cases,

11 Am. U. J. Gender Soc. Pol’y & L. 465

(2003) .........................................................

vii

TABLE OF AUTHORITIES—Continued

Page(s)

Elizabeth R. Vigdor & James A. Mercy,

Disarming Batterers: The Impact of

Domestic Violence Firearm Laws, in

Evaluating Gun Policy: Effects on Crime

and Violence (J. Ludwig & P. J. Cook

eds., 2003) .................................................

Elizabeth R. Vigdor & James A. Mercy, Do

Laws Restricting Access to Firearms by

Domestic Violence Offenders Prevent

Intimate

Partner

Homicide?,

Evaluation Rev. 313 (2006) ......................

Evan Murphy et al., Motivations, Barriers,

and Impact of Continuing Judicial

Education: A Survey of U.S. Judges, 57

Ct. Rev. 40 (2021)......................................

Heidi Stöckl et al., The Global Prevalence of

Intimate Partner Homicide: A Systematic

Review, 382 Lancet 859 (2013) .................

J.R. Johnston et al., Allegations and

Substantiations of Abuse in Custodydisputing Families, 43 Fam. Ct. Rev. 283

(2005) .........................................................

Jacquelyn C. Campbell et al., Intimate

Partner Homicide: Review and Implications of Research and Policy, 7 Trauma

Violence & Abuse 246 (2007) ....................

viii

TABLE OF AUTHORITIES—Continued

Page(s)

Jane C. Murphy, Engaging with the State:

The Growing Reliance on Lawyers and

Judges to Protect Battered Women, 11

Am. U. J. Gender Soc. Pol’y & L. 499

(2003) ............................................. 10, 12, 13, 15

Jane K. Stoever, Access to Safety and

Justice: Service of Process in Domestic

Violence Cases, 94 Wash. L. Rev. 333

(2019) ..................................................... 7, 11, 12

Jane K. Stoever, Enjoining Abuse: The

Case for Indefinite Domestic Violence

Protective Orders, 67 Vand. L. Rev. 1015

(2014) ......................................................... 9, 13

Jane K. Stoever, Stories Absent from the

Courtroom: Responding to Domestic

Violence in the Context of HIV and AIDS,

87 N.C. L. Rev. 1157 (2009) ......................

Jennie Runevitch, Family Questions Court

System Following Columbus Woman’s

Murder Days After Being Denied

Restraining Order, WTHR (Dec. 29,

2022), https://tinyurl.com/2p823pp7 ........

Jessica K. Steinberg, Demand Side Reform

in the Poor People’s Court, 47 Conn. L.

Rev. 741 (2015)..........................................

John S. Meier, Domestic Violence, Child

Custody, and Child Protection: Understanding Judicial Resistance and Imagining the Solutions, 11 Am. U. J. Gender

Soc. Pol’y & L. 657 (2003) .........................

TABLE OF AUTHORITIES—Continued

Page(s)

Judith Herman, Trauma and Recovery: The

Aftermath of Violence—From Domestic

Abuse to Political Terror (1992) ...............

Judith McFarlane et al., Protection Orders

and Intimate Partner Violence: An 18Month Study of 150 Black, Hispanic, and

White Women, 94 Am. J. Pub. Health 613

(2004) .........................................................

Julie M. Kafka et al., Judging Domestic

Violence from the Bench: A Narrative

Analysis of Judicial Anecdotes About

Domestic Violence Protective Order

Cases, 29 Qualitative Health Res. 1132

(2019) .........................................................

Karla Fischer & Mary Rose, When “Enough

Is Enough”: Battered Women’s Decision

Making Around Court Orders of Protection, 41 Crime & Delinq. 414 (1995) .........

Kathryn E. Moracco et al., Female Intimate

Partner Homicide: A Population-Based

Study, 58 J. Am. Med. Women’s Ass’n 20

(2003) .........................................................

Kim Y. Slote et al., Battered Mothers Speak

Out: Participatory Human Rights

Documentation as a Model for Research

and Activism in the United States, 11

Violence Against Women 1367 (2005) ......

TABLE OF AUTHORITIES—Continued

Page(s)

Kit Kinports & Karla Fischer, Orders of

Protection in Domestic Violence Cases: An

Empirical Assessment of the Impact of the

Reform Statutes, 2 Tex. J. Women & L.

163 (1993) .................................................. 14-15

Kristin Kalsem, Judicial Training on

Domestic Violence: A 50-State Survey

(2019) .........................................................

Laurie S. Kohn, The Justice System and

Domestic Violence: Engaging the Case but

Divorcing the Victim, 32 N.Y.U. Rev. L. &

Soc. Change 191 (2008).............................

Lisa Goodman et al., Obstacles to Victims’

Cooperation With the Criminal Prosecution of Their Abusers: The Role of Social

Support, 14 Violence & Victims 427

(1999) ......................................................... 13-14

Martha Shaffer & Nicholas Bala, Wife

Abuse, Child Custody and Access in

Canada, 3:3-4 J. Emotional Abuse 253

(2003) .........................................................

Mary Schouvieller, Leaping Without Looking:

Chapter 142’s Impact on Ex Parte Protection Orders and the Movement Against

Domestic Violence in Minnesota, 14 Law

& Ineq. 593 (1996).....................................

TABLE OF AUTHORITIES—Continued

Page(s)

Maryland Special Joint Committee, Report

on Gender Bias in The Courts (1989),

reprinted in Maryland Special Joint

Committee, Report of the Special Joint

Committee on Gender Bias in the Courts,

20 U. Balt. L. Rev. 1 (1990) ......................

Matthew Carlson et al., Protective Orders

and Domestic Violence: Risk Factors

for Re-Abuse, 14 J. Fam. Violence 205

(1999) .........................................................

Michelle Bemiller, When Battered Mothers

Lose Custody: A Qualitative Study of

Abuse at Home and in the Courts, 5 J.

Child Custody 228 (2008) .........................

Nancy Thoennes & Patricia G. Tjaden, The

Extent, Nature, and Validity of Sexual

Abuse Allegations in Custody/Visitation

Disputes, 14 Child Abuse & Neglect 151

(1990) .........................................................

National Center for State Courts, State

Links, https://tinyurl.com/z32fyrw8 (last

visited Aug. 16, 2023) ...............................

National Conference of State Legislatures,

Family-Friendly Courts: Opportunities

for State Legislators To Improve Civil

Court Processes (June 20, 2023),

https://tinyurl. com/4zyz2vjb ....................

xii

TABLE OF AUTHORITIES—Continued

Page(s)

National Council of Juvenile and Family

Court Judges, Civil Protection Orders:

Strategies for Safe and Effective Service

of Process (Aug. 17, 2022), https://tiny

url.com/4fv4zmp5 ...................................... 7, 12

NCJFCJ, Judicial Education Development

Initiative on Domestic Violence: From

Concepts to Improved Court Responses,

https://tinyurl.com/yuvd7t3d (last visited

Aug. 16, 2023) ...........................................

NCJFCJ, Who We Are, https://www.ncjfcj.

org/ (last visited Aug. 16, 2023) ................

Nico Tocme & Nicholas Bala, False

Allegations of Abuse and Neglect When

Parents Separate, 29 Child Abuse &

Neglect 1333 (2005) ..................................

Nikki Hawkins, Perspectives on Civil

Protective Orders in Domestic Violence

Cases: The Rural and Urban Divide, 266

Nat’l Inst. Just. J. 4, 6 (2010). ..................

NJIDV, About Us, https://tinyurl.com/44nh

74zj (last visited Aug. 16, 2023) ............... 19, 20

NJIDV, Enhancing Judicial Skills in Domestic Violence Cases Workshop, https://

tinyurl.com/3skbmyrx (last visited Aug.

16, 2023) ....................................................

Office of State Commission on Judicial Conduct, Frequently Asked Questions, https://

tinyurl.com/mr3wwvek (last visited Aug.

16, 2023) ....................................................

xiii

TABLE OF AUTHORITIES—Continued

Page(s)

State Bar of Texas, The Gender Bias Task

Force of Texas: Final Report (1994)..........

Stuart Ross & Sophie Aitken, “If It Hadn’t

Been Online I Don’t Think I Would Have

Applied”: Applicant Experiences of an

Online Family Violence Intervention Order

Process, 37 J. Interpersonal Violence 221

(2022) .........................................................

Susan Sorenson, Firearm Use in Intimate

Partner Violence: A Brief Overview, 30

Evaluation Rev. 229 (2006) ......................

Texas Code of Judicial Conduct, https://tiny

url.com/3syjz7av (Jan. 21, 2022) ..............

Texas State Law Library, Protective Order

Kit – as Approved by the Supreme Court

of Texas, https://tinyurl.com/mr3jx5p8

(last visited Aug. 16, 2023) ....................... 5, 10

Tonya Brown, SC Woman Denied Protective

Order for ‘Failure to Prove’ Alleged

Abuse, Court Records Show, abc15 News

(Jan. 26, 2022), https://tinyurl.com/5n62

mcu8 ..........................................................

Washington Post, Judge Tosses Restraining

Order Fan Obtained Against Letterman

(Dec. 28, 2005), https://tinyurl.com/45wd

9n5n ...........................................................

Woman Filed Protection Order Days Before

Apparent Murder-Suicide, UpNorthLive

(July 12, 2022), https://tinyurl.com/yct28

sx9..............................................................

INTEREST OF AMICI CURIAE1

Amici curiae, listed in the Appendix, are educators,

practitioners, non-profit organizations, and a former

judge with critical expertise in domestic violence generally, and the domestic violence protective order petition

process specifically. Amici, numbering 13 individuals

and two organizations in total, serve in varying roles

in states across the country, including as advocates for

survivors of domestic violence, directors of law school

domestic violence clinics, and a former judge in state

family courts. In their roles, Amici provide vital

services to individuals and families seeking domestic

violence protection, including assisting in all facets of

the domestic violence protective order process.

Having dedicated their careers to advocating for,

working with, and protecting survivors of domestic

violence, Amici have a strong interest in the correct

interpretation of 18 U.S.C. § 922(g)(8), a law passed

by Congress to ensure that firearms are not available

to some of the most dangerous individuals in our

society: domestic violence abusers. Amici respectfully

submit that the Fifth Circuit’s decision misconstrued the

onerous process required to obtain domestic violence

protective orders that are covered by § 922(g)(8).

Additionally, the Fifth Circuit ignored the vital

importance of § 922(g)(8) in protecting survivors of

domestic violence.

In accordance with Supreme Court Rule 37, Amici affirm that

no person or entity other than Amici and their counsel authored

this brief in whole or in part, and that no person or entity other

than Amici and their counsel contributed money intended to fund

the preparation or submission of this brief.

SUMMARY OF ARGUMENT

The federal law at issue, 18 U.S.C. § 922(g)(8), works

in conjunction with state domestic violence protective

orders (“DVPOs”) to disarm dangerous individuals

only where heightened due process requirements have

been met and in situations where people in serious

danger need protection.

A. 18 U.S.C. § 922(g)(8) disarms respondents to

DVPOs after strict due process safeguards have been

satisfied and a judge has found that the respondent

has committed or will commit violence in a domestic

setting. Due to § 922(g)(8)’s strict requirements, it

applies only to a subset of civil protective orders issued

by state courts.

B. Given these strict requirements, § 922(g)(8)

functions appropriately to disarm dangerous individuals. Contrary to statements made in the lower court’s

concurring opinion, these orders are not granted to

“virtually all who apply,” and state court judges

are well-equipped to perform their job of discerning

between legitimate and frivolous claims—a vital

presumption in our judicial system. There is no reason

to assume that judges are incapable of performing

their basic functions, and no support for the fear

(articulated in the concurring opinion) that judges

regularly grant DVPOs based on false claims.

C. Finally, § 922(g)(8)’s ability to disarm dangerous

individuals is critical to protecting the lives of people

who have suffered abuse, and where a judge has found

they are likely to suffer more. Indeed, laws like

§ 922(g)(8) are demonstrably effective in protecting

survivors of domestic violence. Rather than being a

tool of abuse, § 922(g)(8) is a necessary instrument

used to protect individuals, families, and the community

from life-threatening danger.

ARGUMENT

I. 18 U.S.C. § 922(g)(8) Disarms Individuals

Only in a Subset of Civil Protective Order

Cases Involving Domestic Violence, Where

Rigorous Safeguards Are Met and Practical

Barriers Are Overcome

The federal law at issue in this matter, 18 U.S.C.

§ 922(g)(8), applies only to a subset of civil protective

orders granted under state law. Court orders that

trigger § 922(g)(8) are issued only when a petitioner

(in a domestic or familial relationship with the respondent) meets a series of statutory requirements that are

designed to protect the respondent’s constitutional

right to due process and when the petitioner overcomes

myriad practical barriers. As a result, § 922(g)(8) applies

in only a select subset of domestic violence cases involving individuals adjudicated to pose a high risk of danger.

A. Section 922(g)(8) only applies where

procedural safeguards have been

satisfied and the underlying protective

order meets substantive requirements

specific to domestic violence cases

Section 922(g)(8) prohibits an individual from

possessing a firearm while subject to a qualifying

domestic violence protective order (referred to herein

as “DVPO”) issued by a state court. As used in this

brief, “DVPO” means only non-ex parte orders of

protection that meet four statutory requirements.

First, the respondent to the DVPO must have actual

notice of a hearing on the merits by proper service of

process. See 18 U.S.C. § 922(g)(8)(A) (the order must

be “issued after a hearing of which such person

received actual notice . . . .”).

Second, the order must have been issued at a

hearing “at which [the respondent] had an opportunity

to participate.” See 18 U.S.C. § 922(g)(8)(A).

Third, § 922(g)(8)(B) requires a domestic or familial

relationship between the petitioner and respondent.

See 18 U.S.C. § 922(g)(8)(B) (the order must “restrain[]

such person from harassing, stalking, or threatening

an intimate partner of such person or child of such

intimate partner or person, or engaging in other

conduct that would place an intimate partner in

reasonable fear of bodily injury to the partner or

child.”). Another federal law defines “intimate partner”

as “the spouse of the person, a former spouse of the

person, an individual who is a parent of a child of the

person, and an individual who cohabitates or has

cohabitated with the person.” 18 U.S.C. § 921(a)(32).

Other relationships, such as dating or intimate

relationships without cohabitation or having children

in common, do not qualify.

And fourth, a judge must make an express finding

that the respondent poses a credible threat to the

petitioner or the order must expressly prohibit the

respondent from using or threatening the use of physical force. See 18 U.S.C. § 922(g)(8)(C) (the order must

“(i) include[] a finding that such person represents a

credible threat to the physical safety of such intimate

partner or child; or (ii) by its terms explicitly prohibits

the use, attempted use, or threatened use of physical

force against such intimate partner or child that would

reasonably be expected to cause bodily injury.”).

As a result, § 922(g)(8) applies in only that subset of

factual scenarios where heightened procedural due

process protections are met, and the evidence demonstrates that there is reason to believe that violence has

occurred and/or will occur in a domestic setting.

B. Texas’s law exemplifies the requirements of § 922(g)(8)

Texas’s DVPO law operates in concert with § 922(g)(8).

In Texas, DVPOs are only available to petitioners

when the parties meet the statutory definition of familial

relationship. See Tex. Fam. Code § 71.003 (“‘Family’

includes individuals related by consanguinity or affinity,

as determined [elsewhere in the code], individuals who

are former spouses of each other, individuals who are

the parents of the same child . . . .”); see also Texas

State Law Library, Protective Order Kit – as Approved

by the Supreme Court of Texas, at 2, https://tinyurl.

com/mr3jx5p8 (last visited Aug. 16, 2023) (hereinafter

“Texas’s Domestic Violence Protective Order Form”)

(“Applicant and Respondent are spouses, former

spouses, parents of the same child, live-in partners, or

former live-in partners, and are thus ‘intimate partners’

as defined by 18 U.S.C. § 921(a)(32) . . . .”).

The DVPO petitioner must also have experienced

family violence, as defined by statute. Tex. Fam. Code

§ 71.004 (defining family violence as “(1) an act by a

member of a family or household against another

member of the family or household that is intended to

result in physical harm, bodily injury, assault, or

sexual assault or that is a threat that reasonably

places the member in fear of imminent physical harm,

bodily injury, assault, or sexual assault, but does not

include defensive measures to protect oneself; (2) abuse,

as that term is defined [elsewhere in the code], by a

member of a family or household toward a child of the

family or household.”); see also Texas’s Domestic

Violence Protective Order Form at 32 (protective order

appropriate where Respondent has (1) “committed

family violence against the Applicant or Children

named below and is likely to commit family violence in

the future;” (2) “[T]here is a presumption that the

Respondent has committed family violence and is

likely to commit family violence in the future;” or

(3) “The Respondent has violated a prior Protective

Order that expired or will expire within 30 days.”).

In Texas, only once these threshold requirements

have been satisfied may an individual “file an application for a protective order to protect the applicant or

any other member of the applicant’s family or household.”

Tex. Fam. Code § 82.002(a). These requirements for

issuance of a DVPO are similar in other states. See, e.g.,

Minn. Stat. Ann. § 518B.01; N.Y. Fam. Ct. Act § 821.

C. Petitioners seeking DVPOs must meet

strict procedural requirements

Upon receiving a sworn petition for a DVPO, some

state courts issue a temporary protective order based

on the petition alone, or based on an ex parte hearing

at which the petitioner describes the basis for her

or his petition. A temporary order granted at this

stage of litigation does not trigger § 922(g)(8), as the

respondent has not received notice, or had the opportunity to participate in a hearing.2 See, e.g., Md. Code

Ann. Fam. Law § 4-505; Conn. Gen. Stat. Ann. § 46b15(b). After granting such temporary relief as may be

necessary, a court receiving a sworn petition will set a

date for a merits hearing, see Tex. Fam. Code § 84.001(a),

and issue notice of the petition and hearing date to the

respondent, see Tex. Fam. Code § 82.042.

See United States Br. 44 (“By requiring notice and a hearing,

for example, Section 922(g)(8) screens out ex parte orders.”).

The respondent to a DVPO must also receive service

of the petition. See, e.g., Tex. Fam. Code § 82.043(c);

Tex. R. Civ. P. 106(a). In Texas, service is considered

proper where it is done by personal delivery to the

respondent or the mailing of the application to the

respondent with return receipt requested. See Tex. R.

Civ. P. 106(a). However, in the vast majority of states,

regular methods of service of process, such as mailing

or leaving documents at the respondent’s place of residence, are insufficient, and DVPOs are enforceable only

after personal service has been made on respondents.3

Fewer than one-third of states explicitly allow

alternative forms of service for DVPOs if personal

service has been attempted but cannot be achieved.4

Of the states that allow alternative service, most

require the petitioner to seek judicial approval based

on failed attempts to effect service (and/or evidence

that the respondent is evading service) and a judicial

finding that the petitioner conducted diligent efforts.5

The personal service requirement for DVPOs is

generally more exacting than that required for service

in other contexts. In federal court, for example,

See National Council of Juvenile and Family Court Judges,

Civil Protection Orders: Strategies for Safe and Effective Service

of Process, at 9 (Aug. 17, 2022), https://tinyurl.com/4fv4zmp5.

Jane K. Stoever, Access to Safety and Justice: Service of

Process in Domestic Violence Cases, 94 Wash. L. Rev. 333, 362

(2019).

Id. at 363. Filing a motion seeking permission to use alternative methods of service is an additional challenge, especially for

pro se petitioners, assuming they are even aware of the option.

See Andrew C. Budzinski, Reforming Service of Process: An

Access-To-Justice Framework, 90 U. Colo. L. Rev. 167, 210 (2019)

(“Pro se litigants typically lack the expertise to sufficiently

document their efforts [of achieving alternate service].”).

documents can be left at an individual’s dwelling “with

someone of suitable age and discretion.” Fed. R. Civ.

P. 4(e)(2)(B). Many states likewise employ significantly less stringent service requirements in legal

contexts other than DVPOs. See, e.g., Cal. Corp. Code

§ 15908.06 (allowing notice of dissolution of limited

partnership through publication); Del. Code Ann. tit.

9, § 280 (providing that publication is permissible for

dissolution of corporations). Some states that require

strict personal service of DVPOs permit service through

more lenient methods in other contexts involving

family or intimate relationships. Compare Cal. Fam.

Code § 243 (requiring that protective orders be personally served), with Cal. Welf. & Inst. Code § 366.26

(authorizing service by publication in terminating

parental rights).

The respondent must also have sufficient time to

prepare to rebut the allegations. See, e.g., Tex. Fam.

Code § 84.003(a); see also Tex. Fam. Code § 84.004(a)

(“If a respondent receives service of notice of an application for a protective order within 48 hours before the

time set for the hearing, on request by the respondent,

the court shall reschedule the hearing for a date not

later than 14 days after the date set for the hearing.”).6

After a hearing on the merits, at which both parties

have the opportunity to be represented by counsel, the

judge will weigh the evidence and make findings. In

Texas, for example, if the judge finds that (1) family

violence has occurred, and (2) family violence is likely

A hearing is not required where the respondent consents to

the order, see Tex. Fam. Code § 85.005, which is what respondent

Zackey Rahimi did in the instant case, see J.A. 3.

to occur in the future, see Tex. Fam. Code § 85.001(a),7

the judge may issue a final protective order.

State statutes typically limit DVPOs to an initial,

limited period of time. Compare Ark. Code Ann. § 915-205(b) (requiring courts to enter DVPOs for a fixed

period that may be as short as ninety days), with Cal.

Fam. Code § 6345(a) (stating DVPOs “may have a

duration of not more than five years”).8 Petitioners

seeking orders in effect for a longer period of time must

petition the court for an extension of the order, and

judges have the discretion to grant or deny that

request. If the order expires before a petitioner makes

that request but the petitioner still seeks protection,

she or he would be required to begin the filing process

and effectuate service upon the respondent once again.9

Additionally, limited-duration DVPOs may be modified

or vacated for “good cause,” or if the need for the order

ceases. See, e.g., Cal. Fam. Code § 6345. The requirements of § 922(g)(8) are only applicable during the

duration of the DVPO, which is limited to the time

that a court finds is necessary to address abuse and

protect the community.

The Texas legislature recently updated this statute to remove

the “likely to occur in the future” element, but that amendment

does not take effect until September 1, 2023. See 2023 Tex. Sess.

Law Serv. Ch. 688 (H.B. 1432).

See Jane K. Stoever, Enjoining Abuse: The Case for Indefinite

Domestic Violence Protective Orders, 67 Vand. L. Rev. 1015, 1046

(2014); Dana Harrington Conner, Civil Protection Order

Duration: Proof, Procedural Issues, and Policy Considerations, 24

Temp. Pol. & Civ. Rts. L. Rev. 343, 349 (2015).

Stoever, Enjoining Abuse, at 1050–52.

D. Petitioners seeking DVPOs must overcome myriad practical burdens

In addition to these rigid procedural requirements

embedded in state DVPO statutes, there are numerous practical barriers that, on the one hand, serve as

robust safeguards for respondents and, on the other,

can have a chilling effect even on the petitioners

most in need of these protections. Personal service and

attendance at hearings are two such requirements

that impose numerous logistical, economic, and psychological burdens on petitioners.10

Further, pro se petitioners constitute the majority of those

seeking DVPOs. See Jane K. Stoever, Stories Absent from the

Courtroom: Responding to Domestic Violence in the Context of

HIV and AIDS, 87 N.C. L. Rev. 1157, 1203 & n.187 (2009). In

addition to dealing with these logistical, economic, and psychological burdens, a pro se petitioner must still advocate on her or

his own behalf and navigate complex and confusing legal procedures. For example, in Texas, after filing a petition for a DVPO,

the petitioner must file two copies of their petition directly with

the court. Tex. Fam. Code § 82.002(a). If the petitioner wants

their address and date of birth to remain confidential, they must

submit a notarized affidavit. See Texas's Domestic Violence

Protective Order Form, at 31–32. A petitioner alternatively may

submit a non-notarized declaration as part of their application

instead of an affidavit, but their address and date of birth will be

public information. Id. at 2. A court will not consider any petition

that fails to comply with these requirements. These challenges

pose too high a bar for many, and lacking legal representation

has been shown to substantially decrease the likelihood of

receiving a final protective order. See, e.g., Jane C. Murphy,

Engaging with the State: The Growing Reliance on Lawyers and

Judges to Protect Battered Women, 11 Am. U. J. Gender Soc. Pol’y

& L. 499, 511 (2003) (finding that applicants represented by

attorneys obtained protective orders more than twice as often as

those without attorneys).

1. Practical burdens of the notice/personal

service requirement

The personal service requirement carries with it

practical hurdles that petitioners must overcome to

obtain relief. The petitioner may have difficulty perfecting service because the respondent lacks a stable

address or evades service. The petitioner may therefore need to attempt personal service multiple times,

which can be time-consuming and expensive, and may

dissuade petitioners from pursuing their case even

when their safety is genuinely in jeopardy.11

While some petitioners can afford a private investigator or process server who can search for respondents

and attempt service multiple times, most petitioners

are pro se and lack financial means to do so.12 These

petitioners often rely on law enforcement agencies to

conduct personal service under the Violence Against

Women Act (“VAWA”). See 34 U.S.C. §§ 10450, 10461.

VAWA does not, however, require law enforcement

personnel to attempt service a set number of times or

See Stoever, Access to Safety and Justice, at 366–67 &

nn.191–96 (detailing cases where petitioners spent thousands of

dollars to locate and serve respondents); Budzinski, Reforming

Service of Process, at 212 (“Logistical challenges, agency costs,

stringent rules governing requests for alternative service, and

inadequate access to effective methods of alternative service all

work together to magnify the negative impact of service of process

rules on pro se plaintiffs, particularly in low-income communities.”).

See, e.g., D.C. Access to Justice Commission, Justice for All?

An Examination of the Civil Legal Needs of the District of

Columbia’s Low-Income Community 61 (2008); Jessica K.

Steinberg, Demand Side Reform in the Poor People’s Court, 47

Conn. L. Rev. 741, 746 (2015) (finding increasing rates of pro se

litigants in domestic violence cases); see also Budzinski,

Reforming Service of Process, at 198–207 (detailing logistical and

cost challenges pro se petitioners face when serving abuser).

make reasonable efforts. Given resource and staffing

constraints, the large volume of petitions and orders

to be served, and a potentially short window to effect

service, “overworked law enforcement personnel may

have little incentive to doggedly locate and personally

serve a batterer.”13 One study from Seattle found that

“police were unable to accomplish service in more than

40% of protection order cases due to their inability to

locate the subject.”14 Another found that service failed

in 50% of cases.15

The personal service requirement thus proves

insurmountable for many petitioners. Over one-third

of DVPO cases are continued or dismissed for lack of

personal service.16 Alternatively, difficulty or failure to

achieve personal service may delay the scheduling of a

hearing on a final protective order or prevent the

terms of an order from being enforceable.17

2. Practical burdens

requirement

the

hearing

The hearing requirement protects a respondent’s

right to due process, but also presents its own set of

significant challenges for victims of domestic violence

who are in need of the protections provided by a

Mary Schouvieller, Leaping Without Looking: Chapter 142’s

Impact on Ex Parte Protection Orders and the Movement Against

Domestic Violence in Minnesota, 14 Law & Ineq. 593, 630 (1996).

Stoever, Access to Safety and Justice, at 337.

Murphy, Engaging with the State, at 509 (finding that the

law enforcement agency responsible for serving an ex parte order

failed in 50% of the cases surveyed).

See Stoever, Access to Safety and Justice, at 337.

See Civil Protection Orders: Strategies for Safe and Effective

Service of Process at 9.

DVPO. Domestic violence proceedings can be more

dangerous for litigants than any other type of court

proceeding, and DVPO petitioners sometimes face acute

physical danger when attending hearings.19 Attendance

at court hearings also means having to take time off of

work, arrange transportation to a courthouse, and/or

find childcare.20 These burdens are particularly challenging for many individuals seeking DVPOs because

those experiencing domestic violence, particularly

women, are more likely to have unstable employment

than the general population.21

Petitioners may also find attending the hearing (and

facing their abuser) to be psychologically daunting.

A large percentage of domestic violence victims

suffer from depression, post-traumatic stress disorder

(“PTSD”), and/or anxiety, among other conditions.22

See Murphy, Engaging with the State, at 509 (noting that

30% of petitioners surveyed did not attend the hearing for a final

protective order); Laurie S. Kohn, The Justice System and

Domestic Violence: Engaging the Case but Divorcing the Victim,

32 N.Y.U. Rev. L. & Soc. Change 191, 205 (2008) (discussing high

dismissal rates for protective order cases based on petitioners’

failure to appear in court).

Stoever, Enjoining Abuse, at 1026–28.

See Stuart Ross & Sophie Aitken, “If It Hadn’t Been Online I

Don’t Think I Would Have Applied”: Applicant Experiences of

an Online Family Violence Intervention Order Process, 37 J.

Interpersonal Violence 221, 230 (2022) (describing childcare and

economic barriers to court attendance).

See, e.g., American Psychological Association, Violence &

Socioeconomic Status, at 2 (2016), https://tinyurl.com/2zh5nhts

(“Women who are physically assaulted are significantly more

likely to have unstable employment than women who do not

experience intimate partner violence.”).

See, e.g., Lisa Goodman et al., Obstacles to Victims’

Cooperation With the Criminal Prosecution of Their Abusers: The

Thus, petitioners often feel intense fear and dread

ahead of a DVPO hearing due to the knowledge that

they will have to confront their abuser in court and

testify in the abuser’s presence about the harm that

was inflicted upon them.23 Even if the petitioner can

overcome these hurdles and attend the hearing,

providing hearing testimony about the abuse can be

retraumatizing.24 Petitioners may also experience

shame or humiliation from sharing these personal

experiences in a public setting in front of a judge and

strangers whom they have never met and who will be

evaluating and potentially attacking the validity of

their trauma.25 Many victims are unable to move

Role of Social Support, 14 Violence & Victims 427, 435 (1999)

(finding that nearly 80% of domestic violence victims involved in

prosecutions of their abusers suffered from clinically diagnosable

depression).

See Arlene N. Weisz, Legal Advocacy for Domestic Violence

Survivors: The Power of an Informative Relationship, 80 Fams.

Soc’y 138, 143 (1999) (quoting comments made by multiple

women about the fears and corresponding physical symptoms

they experienced before protective order hearings); see also Karla

Fischer & Mary Rose, When “Enough Is Enough”: Battered Women’s

Decision Making Around Court Orders of Protection, 41 Crime &

Delinq. 414, 419 (1995) (explaining that petitioners may fear

respondents’ threats of retaliation for revealing abuse).

Deborah Epstein et al., Transforming Aggressive Prosecution

Policies: Prioritizing Victims’ Long-Term Safety in the Prosecution of

Domestic Violence Cases, 11 Am. U. J. Gender Soc. Pol’y & L. 465,

474–75 (2003) (noting that “when confronted with reminders of

the abuse, battered women with PTSD often experience flashbacks

that make them feel as though they are actually reliving the

trauma”); Judith Herman, Trauma and Recovery: The Aftermath

of Violence—From Domestic Abuse to Political Terror 72 (1992)

(“If one set out by design to devise a system for provoking

intrusive post-traumatic symptoms, one could not do better than

a court of law.”).

See Kit Kinports & Karla Fischer, Orders of Protection in

forward with their petitions due to the specter of a

hearing and its attendant hardships.

In sum, the barriers faced by petitioners seeking

DVPOs underscore that these orders are not easily

obtainable,26 and should instill additional confidence

in the legitimacy and merits of DVPOs that are

ultimately issued.

E. Section 922(g)(8) does not apply to

many civil disputes

As is discussed above, § 922(g)(8) applies only to the

set of scenarios where (1) a petitioner has overcome

significant procedural and practical obstacles to pursue

protection, (2) a respondent has been given ample

notice and time to respond to the allegations made

against him or her, (3) a court has found that a familial

relationship exists, and (4) a court has found a credible

threat to the safety of the petitioner or has restrained

the respondent’s use or threatened use of physical

force against the petitioner. This means that there are

numerous civil disputes and civil protective orders

that never trigger § 922(g)(8).

In his concurring opinion, Judge Ho attempts to

illustrate how § 922(g)(8) might be susceptible to

abuse by discussing a civil protective order that never

would have triggered § 922(g)(8). Judge Ho cites a

Domestic Violence Cases: An Empirical Assessment of the Impact

of the Reform Statutes, 2 Tex. J. Women & L. 163, 213 (1993)

(reporting that, in a national survey of domestic violence legal

organizations, over 75% of them responded that “the public

nature of the procedures for obtaining orders of protection and

the embarrassment of going to court prevent some women in their

county from seeking protective relief”).

See Murphy, Engaging with the State, at 508 (study finding

that fewer than half of applicants received a final protective order).

2005 incident in which a judge issued a restraining

order against television personality David Letterman

“on the ground that his presence on television

harassed the plaintiff.” United States v. Rahimi, 61

F.4th 443, 466 (5th Cir. 2023) (Ho, J., concurring).

However, a protective order such as the order against

Letterman would never trigger § 922(g)(8). Letterman

had no intimate partner relationship with the woman

seeking the order, there was no family violence alleged

between them, Letterman was never served with the

order, and he did not have the opportunity to appear

at a hearing.27 Thus, Letterman never did and never

would have faced any restraint on his right to possess

a firearm in that case.

While Judge Ho cites Letterman in an attempt to

argue that § 922(g)(8) applies too broadly, this

example ultimately demonstrates the opposite. The

safeguards embedded in § 922(g)(8) (and the statutes

that form the predicate for § 922(g)(8)) would not have

allowed the order against Letterman to deprive him of

his Second Amendment rights.

II. In Light of These Substantive Safeguards

and Practical Burdens, DVPOs Appropriately Disarm Dangerous Individuals of

Firearms

The concurring opinion also asserts that “judges

are too often ill-equipped to prevent abuse” and that

“restraining orders . . . are granted to virtually all

See generally CBS News, Letterman Fights Restraining

Order (Dec. 21, 2005), https://tinyurl.com/y8t9u3f6. The same

judge who granted the order ultimately reversed and vacated the

order. Washington Post, Judge Tosses Restraining Order Fan

Obtained Against Letterman (Dec. 28, 2005), https://tinyurl.com/

45wd9n5n.

who apply,” Rahimi, 61 F.4th at 465–66 (Ho, J.,

concurring) (alteration in original). But Judge Ho cites

only speculation for this sweeping statement, which

ignores the guardrails just discussed: DVPOs generally

require the submission of a sworn statement or

declaration, notice via personal service, and a hearing

at which a judge evaluates the evidence and makes a

finding that the respondent has committed domestic

violence and poses a danger to the petitioner. See

United States Br. 44–45 (discussing same, and noting

the “strict requirements that a protective order must

satisfy to trigger Section 922(g)(8)”).

These requirements provide heightened procedural

and substantive safeguards for respondents, as discussed

supra section I.A-C. They are also consistent with the

fundamental judicial obligations of state court judges.

Making credibility assessments and decisions based

on the facts in cases involving domestic violence are

matters of everyday practice for state judges. This

Court should have confidence that judges will undertake their responsibilities seriously, just as the law

presumes they do in all other contexts, by deciding

whether to grant the requested relief based on the

facts presented to them and in accordance with

applicable law.

A. This Court should presume that state

judges are capable of appropriately

doing their jobs

State court judges play a critical (and familiar) role

in dispensing civil justice within their communities.28

See National Conference of State Legislatures, FamilyFriendly Courts: Opportunities for State Legislators To Improve

Civil Court Processes (June 20, 2023), https://tinyurl.com/4zy

z2vjb (explaining that state courts handle 98% of civil matters).

Moreover, several means of ensuring accountability

exist for oversight of their decisions and to protect

public trust in the judiciary.

For example, judges are expected to follow codes of

judicial conduct.29 These codes establish basic ethics

standards and duties for judges when handling proceedings. For example, the Texas Code of Judicial

Conduct instructs judges that they should “accord to

every person who has a legal interest in a proceeding

. . . the right to be heard according to law,” that they

should “not be swayed by partisan interests, public

clamor, or fear of criticism,” and that they “should be

faithful to the law and shall maintain professional

competence in it.”30 And in Texas, as in all other states,

a judicial oversight commission can investigate and

discipline judges for not adhering to the state’s code of

judicial conduct or other rules governing the state’s

court system.31

States’ court systems also ensure the high quality of

judicial decision-making by mandating judicial educational training before and during judges’ time on the

See American Bar Association, Jurisdictional Adoption of

Revised Model Code of Judicial Conduct, https://tinyurl.com/

yhtjysdt (last visited Aug. 16, 2023) (listing 37 jurisdictions that

have approved a revised model code of judicial conduct).

Texas Code of Judicial Conduct, at 2 (Jan. 21, 2022) https://

tinyurl.com/3syjz7av.

See, e.g., Office of State Commission on Judicial Conduct,

Frequently Asked Questions, https://tinyurl.com/mr3wwvek (last

visited Aug. 16, 2023) (stating that the Texas State Commission on

Judicial Conduct can investigate allegations of judicial misconduct and impose a variety of disciplinary measures); see also

National Center for State Courts, State Links, https://tinyurl.

com/z32fyrw8 (last visited Aug. 16, 2023) (listing state bodies

responsible for overseeing judicial conduct).

bench. Given the prevalence of cases involving

domestic violence, there has been an increasing trend

towards ensuring that state court judges are capable

and equipped to address these cases. As of 2019, thirtyone states and the District of Columbia had legal

provisions or court rules concerning judicial training

on domestic violence, with fifteen states and the

District of Columbia requiring it for certain judges.33

Institutions like the National Council of Juvenile

and Family Court Judges (“NCJFCJ”), a comprehensive training and technical assistance provider to

judges on domestic violence, exist to support these

efforts.34 NCJFCJ partners with the U.S. Department

of Justice, Office on Violence Against Women, and

nonprofit organizations to run the National Judicial

Institute on Domestic Violence (“NJIDV”), which has

provided technical assistance and interactive, skillsbased domestic violence workshops for over 9,000

judges and judicial officers in all fifty states.35

See, e.g., Evan Murphy et al., Motivations, Barriers, and

Impact of Continuing Judicial Education: A Survey of U.S.

Judges, 57 Ct. Rev. 40, 41 (2021) (stating that state court judges

in 45 states must obtain continuing education).

Kristin Kalsem, Judicial Training on Domestic Violence: A

50-State Survey (2019). On May 29, 2023, Texas Governor Greg

Abbott signed SB 855, which will require judicial training around

family violence. See Judicial Training Requirements Regarding

Family Violence, 2023 Tex. Sess. Law Serv. Ch. 275 (S.B. 855)

(Vernon’s 2023).

See NCJFCJ, Who We Are, https://www.ncjfcj.org/ (last

visited Aug. 16, 2023).

See NCJFCJ, Judicial Education Development Initiative on

Domestic Violence: From Concepts to Improved Court Responses,

https://tinyurl.com/yuvd7t3d (last visited Aug. 16, 2023); NJIDV,

About Us, https://tinyurl.com/44nh74zj (last visited Aug. 16, 2023).

The NJIDV has a wide roster of judicial education

workshops, including “Enhancing Judicial Skills in

Domestic Violence Cases (EJS),” and “Continuing Judicial

Skills in Domestic Violence Cases (CJS).”36 These judicial

education workshops do not advance a particular side

or position, but instead focus on providing judges with

the skills necessary to oversee domestic violence cases

competently. For example, the EJS workshop trains

judges on how to “apply an understanding of domestic

violence to judicial fact-finding,” “apply the law in

their jurisdictions to the facts,” and uphold “[f]airness

. . . in domestic violence cases.”37

These workshops represent just a sample of the

available resources provided to already capable judges

to assist them in appropriately adjudicating their cases.38

B. Our justice system requires the presumption that judges can discern

between legitimate and frivolous claims

Putting aside judges’ ethical duties and training, this

Court should have faith in judges’ ability to identify

unfounded claims of domestic violence, particularly in

the absence of any evidence that they are unable to do

so. See United States Br. 44 (stating that “a judicial

decree, such as a protective order, is entitled to a

‘presumption of regularity.’” (quoting Parke v. Raley,

NJIDV, About Us, https://tinyurl.com/44nh74zj (last visited

Aug. 16, 2023).

NJIDV, Enhancing Judicial Skills in Domestic Violence

Cases Workshop, https://tinyurl.com/3skbmyrx (last visited Aug.

16, 2023).

These resources were further increased with the passage and

inclusion of the Keeping Children Safe From Family Violence Act

(“Kayden’s Law”) in the 2022 reauthorization of the Violence Against

Women Act, which incentivizes states to expand judicial training

on family violence. Tit. XV, Pub. L. 117-103, 136 Stat. 951 (2022).

506 U.S. 20, 30 (1992))). Every state entrusts judges

with handling a wide range of disputes arising in all

facets of everyday life, and resolving these disputes

regularly requires judges to make credibility determinations and findings regarding contested facts. Presiding

over a hearing involving a DVPO is structurally no

different from other cases: judges listen to and question both parties, preside over evidentiary hearings,

evaluate the credibility of testifying parties and witnesses,

weigh competing claims and evidence, make factual

findings, determine whether the burden of proof is met,

and order tailored relief. Any assumption that judges

are “ill-equipped” to identify frivolous claims in this context would necessarily imply that they are ill-equipped

to do so in any other type of case they adjudicate.39

C. If anything, judges are biased against

DVPO petitions filed by abused women

Judge Ho’s concurrence asserts that, despite judges’

best efforts, DVPOs are frequently granted on the

basis of falsified allegations. See Rahimi, 61 F.4th at

465 (Ho, J., concurring) (“[A] plaintiff willing to exaggerate past incidents or even commit perjury can have

access to a responsive support group, a sympathetic

court, and a litany of immediate relief.”). This proposition is wrong, and not supported by the facts.

First, allegations of domestic violence are more likely

to be corroborated than not. A study in 2005 reviewed

Judges have multiple tools at their disposal to sanction

litigants who file baseless claims. See, e.g., Tex. R. Civ. P. 13 (“If

a pleading, motion or other paper is signed in violation of this

rule, the court, upon motion or upon its own initiative, after

notice and hearing, shall impose an appropriate sanction available under Rule 215-2b, upon the person who signed it, a

represented party, or both.”).

the records of 120 divorced families and found that

63% of allegations of abuse by one adult of another

(including domestic violence and substance misuse)

were substantiated.40 The remaining “unsubstantiated”

cases are not necessarily false; due to the nature of

abuse happening in private and the shame and blame

often surrounding those who experience abuse,41 it can

be difficult for independent researchers to distinguish

between findings of falsity or insufficient evidence.

The implication of this distinction cannot be overstated. There is a large difference between the

inability to demonstrate in court that an offense has

happened and a judicial finding that a claim is false.

In a study that examined contested custody cases

involving allegations of sexual abuse, researchers

were able to conduct interviews with the experts

J.R. Johnston et al., Allegations and Substantiations of

Abuse in Custody-disputing Families, 43 Fam. Ct. Rev. 283, 290

(2005). This study replicated the results of a Canadian study

done two years earlier, which found that 74% of 42 cases of

spousal abuse against men were substantiated. Martha Shaffer

& Nicholas Bala, Wife Abuse, Child Custody and Access in

Canada, 3:3-4 J. Emotional Abuse 253, 260 (2003). In that study,

where courts either found claims unfounded or exaggerated they

were unlikely to provide a reason for their conclusion, and so it

was similarly challenging to determine why the judge did not find

the claims to be substantiated. Id. at 259–60. A nationwide

Canadian study in 2004 further found that while 42% of

investigations of child maltreatment could be substantiated and

23% were suspected, only 4% of the remaining 35% of unsubstantiated investigations were judged by experts to have been

intentionally false reports. Nico Tocme & Nicholas Bala, False

Allegations of Abuse and Neglect When Parents Separate, 29

Child Abuse & Neglect 1333, 1337 (2005).

A. Rachel Camp, From Experiencing Abuse to Seeking

Protection: Examining the Shame of Intimate Partner Violence, 13

U.C. Irvine L. Rev. 103 (2022).

involved in those cases and determined that false

allegations were not more prevalent in custody disputes

compared to child abuse claims in the general population.42 The researchers found “no evidence to support

the belief that these cases typically involved mothers

falsely accusing fathers to gain or maintain custody of

the children.”43 This finding suggests that abuse can

be difficult to substantiate, especially in contested

settings, not that parents are likely to misrepresent

abuse. See Kayden’s Law § 1502(9), 136 Stat. at 952

(“Scientifically unsound theories that treat abuse

allegations of mothers as likely false attempts to

undermine fathers are frequently applied in family

court to minimize or deny reports of abuse of parents

and children. Many experts who testify against

abuse allegations lack expertise in the relevant type

of alleged abuse, relying instead on unsound and

unproven theories.”).

Second, the available evidence suggests that any

error by judges in considering evidence of intimate

partner violence favors the perpetrators of such violence, rather than the victims. Survivors of domestic

violence are often discredited and disbelieved.44 Research

Nancy Thoennes & Patricia G. Tjaden, The Extent, Nature,

and Validity of Sexual Abuse Allegations in Custody/Visitation

Disputes, 14 Child Abuse & Neglect 151, 161 (1990).

Id. Factors that were commonly associated with unsubstantiated allegations included the children’s age, single reports of

abuse, and allegations of fondling or exposure; the study noted

that children having the capability to testify, allegations of

patterns of behavior, and reports of penetration or oral-genital

abuse increased the likelihood that accusations of abuse would be

substantiated. Id. at 158.

Deborah Epstein & Lisa Goodman, Discounting Women:

Doubting Domestic Violence Survivors’ Credibility and Dismissing

Their Experiences, 167 U. Pa. L. Rev. 399, 436 (2019). More

focusing on particular jurisdictions or courts confirms

that judges often fail to consider evidence of intimate

partner violence in adjudicating custody disputes.45 In

one survey of the legal and victim services community

in rural and urban Kentucky, researchers got the

message loud and clear: When they asked participants

to name the three biggest barriers that petitioners face

in obtaining a DVPO, 40% of participants “mentioned

‘judicial bias.’”46

Concerns of judicial bias center around an “epistemic

asymmetry” in which judges struggle to comprehend

the decisions of survivors.47 Many people who have not

personally suffered domestic violence assume how

they would respond (i.e., that they would leave the

relationship), and judges struggle to understand why

DVPO petitioners might maintain relations with their

abuser.48 In a 2019 qualitative study that interviewed

generally, women “experience hostile, demeaning, or condescending treatment by attorneys and judges” and are often “held to

higher standards than their male counterparts.” See, e.g., State

Bar of Texas, The Gender Bias Task Force of Texas: Final Report,

at 1 (1994).

See, e.g., Kim Y. Slote et al., Battered Mothers Speak Out:

Participatory Human Rights Documentation as a Model for

Research and Activism in the United States, 11 Violence Against

Women 1367, 1368–69 (2005); see also Michelle Bemiller, When

Battered Mothers Lose Custody: A Qualitative Study of Abuse at

Home and in the Courts, 5 J. Child Custody 228 (2008); John S.

Meier, Domestic Violence, Child Custody, and Child Protection:

Understanding Judicial Resistance and Imagining the Solutions,

11 Am. U. J. Gender Soc. Pol’y & L. 657, 662 (2003).

Nikki Hawkins, Perspectives on Civil Protective Orders in

Domestic Violence Cases: The Rural and Urban Divide, 266 Nat’l

Inst. Just. J. 4, 6 (2010).

Epstein & Goodman, Discounting Women, at 412, 416.

Id. at 414.

judges adjudicating DVPOs, judges often discussed

what they perceived as “flawed behavior on the part of

the female plaintiff, suggesting shared blame for the

violence.”49 In a separate study, one petitioner shared

a judge’s response to her civil protective order application: “He said . . . ‘since I would not let that happen to

me, I can’t believe that it happened to you.’”50

In sum, there is no reliable evidence that survivors

of domestic violence systemically lie or commit perjury.

Instead, the majority of domestic violence cases are

substantiated, and where bias exists, it exists against

the petitioner.

III. Section 922(g)(8) Is Vitally Important to

Protect People in Serious Danger

The concurrence below envisions a world in which

DVPOs are merely a tactical tool in divorce or separation proceedings. See Rahimi, 61 F.4th at 465 (Ho, J.,

concurring) (“Many divorce lawyers routinely recommend

pursuit of civil protection orders for clients in divorce

proceedings,” “civil protective orders [are] a tempting

target for abuse,” “civil protective orders can help a

party in a divorce proceeding to secure [favorable]

rulings,” “[p]rotective orders can also be a powerful

strategic tool in custody disputes.”).51 But this

Julie M. Kafka et al., Judging Domestic Violence from the

Bench: A Narrative Analysis of Judicial Anecdotes About

Domestic Violence Protective Order Cases, 29 Qualitative Health

Res. 1132, 1140 (2019).

Maryland Special Joint Committee, Report on Gender Bias

in The Courts (1989), reprinted in Maryland Special Joint

Committee, Report of the Special Joint Committee on Gender Bias

in the Courts, 20 U. Balt. L. Rev. 1, 11–12 (1990).

Given the barriers to obtaining DVPOs, supra section I,

the concurrence further exaggerates the “common practice” of

reasoning ignores the barriers to obtaining DVPOs

(discussed above), and it is contrary to research

establishing that DVPOs are the most effective legal

remedy for intervening in and preventing additional

violence.52

The most consistent risk factor for the murder of

victims is prior intimate partner violence,53 and these

homicides are typically committed after a long history

of domestic violence.54 Guns are used in fatal domestic

violence more than any other type of weapon.55 And in

“mutual” protective orders, and the purported incentive for

abusers to disarm their victims using the combination of

“mutual” protective orders and § 922(g)(8). See Rahimi, 61 F.4th

at 466–67 (Ho, J., concurring). But as the United States explains

in its brief, mutual protective orders are restricted in the

“overwhelming majority” of states. United States Br. 45.

See, e.g., Matthew Carlson et al., Protective Orders and

Domestic Violence: Risk Factors for Re-Abuse, 14 J. Fam. Violence

205 (1999) (concluding that abuse survivors experience a

“significant decline in the probability of abuse” following the

entry of a civil protection order); Judith McFarlane et al.,

Protection Orders and Intimate Partner Violence: An 18-Month

Study of 150 Black, Hispanic, and White Women, 94 Am. J. Pub.

Health 613, 613–18 (2004) (finding significant reductions in

physical assaults, stalking, threats to do bodily harm, and

worksite harassment among women who sought and qualified for

protection orders).

Jacquelyn C. Campbell et al., Intimate Partner Homicide:

Review and Implications of Research and Policy, 7 Trauma

Violence & Abuse 246, 246 (2007).

Kathryn E. Moracco et al., Female Intimate Partner

Homicide: A Population-Based Study, 58 J. Am. Med. Women’s

Ass’n 20, 20 (2003); Heidi Stöckl et al., The Global Prevalence of

Intimate Partner Homicide: A Systematic Review, 382 Lancet 859,

859 (2013) (noting that femicide often “represents the culmination of a long history of abuse”).

Alexia Cooper & Erica L. Smith, U.S. Department of Justice,

homes with “chronic” or “severe” domestic violence,

firearm ownership is 20% higher than in the general

population.56 It is hardly surprising, then, that

“intimate partners with guns present the greatest

fatal risk to women.”57 At least four studies have found

that the rate of intimate partner homicides committed

with firearms decreased when states passed domestic

violence protective order firearm restriction laws like

§ 922(g)(8).58 As a result, firearm possession bans for

individuals subject to DVPOs, including § 922(g)(8),

result in significantly lower rates of intimate partner

homicides.59

The takeaway from the data is clear: § 922(g)(8) is a

necessary instrument to protect individuals, families,

and communities from the life-threatening dangers

of domestic violence. Those who have committed

Homicide Trends in the United States, 1980-2008, at 10 (2011).

Susan Sorenson, Firearm Use in Intimate Partner Violence:

A Brief Overview, 30 Evaluation Rev. 229, 232 (2006).

Id.

See Elizabeth R. Vigdor & James A. Mercy, Disarming

Batterers: The Impact of Domestic Violence Firearm Laws, in

Evaluating Gun Policy: Effects on Crime and Violence 157–214

(J. Ludwig & P. J. Cook eds., 2003); Elizabeth R. Vigdor & James

A. Mercy, Do Laws Restricting Access to Firearms by Domestic

Violence Offenders Prevent Intimate Partner Homicide?, 30

Evaluation Rev. 313 (2006); April M. Zeoli & Daniel W. Webster,

Effects of Domestic Violence Policies, Alcohol Taxes and Police

Staffing Levels on Intimate Partner Homicide in Large US Cities,

16(2) Inj. Prevention 90 (2010); April M. Zeoli et al., Analysis of

the Strength of Legal Firearms Restrictions for Perpetrators of

Domestic Violence and Their Associations with Intimate Partner

Homicide, 187(11) Am. J. Epidemiology 2365 (2017).

Vigdor & Mercy, Do Laws Restricting Access to Firearms by

Domestic Violence Offenders Prevent Intimate Partner Homicide?,

at 332.

domestic violence and have access to guns pose a

unique danger,60 and Congress acted appropriately to

reduce this danger when it enacted § 922(g)(8).

See, e.g., Jennie Runevitch, Family Questions Court System

Following Columbus Woman’s Murder Days After Being Denied

Restraining Order, WTHR (Dec. 29, 2022), https://tinyurl.com/

2p823pp7 (reporting shooting death of a woman by her estranged

husband ten days after a judge denied a protective order and

quoting her sister as saying her death “was definitely preventable”); Woman Filed Protection Order Days Before Apparent MurderSuicide, UpNorthLive (July 12, 2022), https://tinyurl.com/yct28

sx9 (reporting shooting deaths of a woman and her family after

her petition for a protective order was denied two weeks prior);

Tonya Brown, SC Woman Denied Protective Order for ‘Failure to

Prove’ Alleged Abuse, Court Records Show, abc15 News (Jan. 26,

2022), https://tinyurl.com/5n62mcu8 (reporting the shooting

death of a woman by her husband after she was denied an order

of protection against him).

CONCLUSION

This Court has the opportunity to uphold a vital tool

in the continued effort to protect survivors of domestic

violence from further and potentially fatal attack.

Section 922(g)(8) is both constitutional and critically

important to protecting these survivors from further

violence.

Respectfully submitted,

JENNIFER B. LOEB

ANDREW HENDERSON

FRESHFIELDS BRUCKHAUS

DERINGER US LLP

700 13th Street NW

10th Floor

Washington, DC 20005

AARON R. MARCU

Counsel of Record

AEDAN COLLINS

BRANDT HENSLEE

DANIEL HODGKINSON

TAYLOR JACHMAN

MATTHEW RUBLIN

FRESHFIELDS BRUCKHAUS

DERINGER US LLP

601 Lexington Avenue

31st Floor

New York, NY 10022

(212) 277-4000

aaron.marcu@freshfields.com

Counsel for Amici Curiae

August 21, 2023

APPENDIX

APPENDIX TABLE OF CONTENTS

Page

LIST OF AMICI CURIAE................................

APPENDIX

List of Amici Curiae1

1. Bonnie Carlson, Assistant Professor of Law and

Founder and Director of the Domestic Violence Clinic

at Mercer University School of Law (in her individual

capacity; information provided for identification purposes

only).

2. Atlanta Legal Aid Society, Inc., a non-profit

law firm that offers free legal services to low-income

individuals across metro Atlanta.

3. Andrew Budzinski, Associate Professor of Law

and Co-Director of the General Practice Clinic at the

University of the District of Columbia David A. Clarke

School of Law (in his individual capacity; information

provided for identification purposes only).

4. Sacha M. Coupet, Professor of Law at the

Loyola University Chicago School of Law (in her individual capacity; information provided for identification

purposes only).

5. Crisis Line & Safe House of Central Georgia,

Inc., a non-profit agency serving family violence,

sexual assault, and stalking victims and their children

in Central Georgia.

6. Hon. Sherrill A. Ellsworth, Ret., Past

Presiding Judge for the Superior Court of California,

Riverside, and judicial consultant to government and

non-profit organizations (in her individual capacity;

information provided for identification purposes only).

The views expressed herein do not necessarily reflect the

views of the institutions with which Amici are or have been

affiliated.

7. Deborah Epstein, Co-Director of the Georgetown

University Law Center’s Domestic Violence Clinic (in

her individual capacity; information provided for

identification purposes only).

8. Tianna Gibbs, Associate Professor of Law and

Co-Director of the General Practice Clinic at the

University of the District of Columbia David A. Clarke

School of Law (in her individual capacity; information

provided for identification purposes only).

9. Julie Goldscheid, Professor of Law at the City

University of New York School of Law (in her individual capacity; information provided for identification

purposes only).

10. Zelda B. Harris, Dean of the Western New

England University School of Law and Professor of

Law (in her individual capacity; information provided

for identification purposes only).

11. Catherine Priebe, Jane W. Wilson Family

Justice Clinic Fellow at the University of Georgia

School of Law (in her individual capacity; information

provided for identification purposes only).

12. Christine Scartz, Clinical Associate Professor

and Director of the Jane W. Wilson Family Justice

Clinic at the University of Georgia School of Law (in

her individual capacity; information provided for

identification purposes only).

13. Charisa Smith, Associate Professor of Law and

Co-Director of the Family Law Practice Clinic at the

City University of New York School of Law (in her

individual capacity; information provided for

identification purposes only).

14. Jane Stoever, Clinical Professor of Law and

Director of the Domestic Violence Clinic at the

University of California Irvine School of Law, and

Director of the UCI Initiative to End Family Violence

(in her individual capacity; information provided for

identification purposes only).

15. Julia F. Weber, Esq., MSW, Consultant for

the Giffords Law Center to Prevent Gun Violence, and

Adjunct Professor at the Golden Gate University

School of Law (in her individual capacity; information

provided for identification purposes only).

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.